Judge in NSA case has Worcester ties

Susan Spencer TELEGRAM & GAZETTE STAFF

Published Friday December 27, 2013 at 7:46 pm

The question of whether the federal government's collection of Americans' telephone information violates the constitution may well be headed to the Supreme Court, and a judge whose ruling helped define the issue has ties to Worcester.

Judge Richard J. Leon of the U.S. District Court for the District of Columbia graduated from the College of the Holy Cross in 1971.

He declared two weeks ago that the National Security Agency's bulk collection of millions of Americans' phone records, as revealed earlier this year by former NSA contractor Edward Snowden, most likely violated the Fourth Amendment's prohibition of unreasonable searches and seizures. Judge Leon ordered the government to stop collecting personal phone records from two plaintiffs in the case, but held off on implementing the order pending the government's appeal.

After receiving his bachelor's degree from Holy Cross, Judge Leon, a Natick native, received a law degree from Suffolk Law School in 1974 and an advanced law degree from Harvard Law School in 1981, according to U.S. District Court information.

But his isn't the only federal ruling on the question.

On Friday, Judge William H. Pauley III of the U.S. District Court for the Southern District of New York came down on the other side, in a parallel case, granting a motion filed by the federal government to dismiss challenges from the American Civil Liberties Union against the data collection program. According to The New York Times, the ACLU intends to appeal.

Holy Cross professor of political science David L. Schaefer, who came to the college in 1976 and did not personally know Judge Leon, said it was more likely that Judge Leon's judicial outlook was influenced by law school and his experiences in practice and on the bench rather than by his college years.

President George W. Bush appointed Judge Leon to the judgeship in February 2002.

Judge Leon's NSA ruling and previous roles advising Congress in investigating three sitting presidents may arguably reflect a willingness to challenge authority that was a hallmark of campuses in the late 1960s. As a counsel to Congress, he served the House Select "Iran-Contra" Committee in 1987, the House Foreign Affairs Committee's "October Surprise" Task Force in 1992 to 1993, and the House Banking Committee's Whitewater investigation in 1994.

Mr. Schaefer noted that national events played out widely on campuses, including Holy Cross, during Judge Leon's student years. For instance, African-American students at Holy Cross, led in part by U.S. Supreme Court Justice Clarence Thomas, a member of the class of 1972, staged a walkout in 1969 when members of the Black Student Union were disproportionately targeted for discipline after a protest against General Electric recruiters.

"He would certainly have been at the college when that transpired," Mr. Schaefer said.

Whatever the source of Judge Leon's judicial approach — or whether it comes from a prosecutorial background, as mentioned in an Associated Press story by a partner at the law firm of McDermott Will & Emery who knew Judge Leon since his days on Capitol Hill — his tendency to buck executive authority was probably not predicted by his appointing authority, President Bush.

"I would imagine this is not the decision George W. Bush would have hoped he would make on the bench," Mr. Schaefer said.

Mr. Schaefer said that since two federal judges have ruled oppositely on similar cases, the matter would almost certainly reach the Supreme Court.

The difference in the rulings concerns whether an individual has a legitimate expectation of privacy in information provided to third parties, or whether the government's collection of metadata — the broad compilation of what phones connected to what other phones — constitutes unreasonable search and seizure.

Judge Pauley, in his ruling Friday, interpreted a 1979 Supreme Court decision, Smith v. Maryland, to uphold the view that there is no legitimate expectation of privacy extending to numbers dialed from a phone.

He said that had the metadata collection program been in place prior to the terrorist attacks of 9/11, the hijackers might have been caught before the attacks. The NSA did not track all phone calls made from the United States then, including those to an al-Qaida safe house from a hijacker living in San Diego.

Judge Leon argued that the relevance of the 34-year-old "Smith" precedent "has been eclipsed by technological advances and a cell phone-centric lifestyle heretofore inconceivable."

He concluded: "The case is yet the latest chapter in the Judiciary's continuing challenge to balance the national security interests of the United States with the individual liberties of our citizens."

Judge Leon was not available for comment Friday.

Contact Susan Spencer at susan.spencer@telegram.com. Follow her on Twitter @SusanSpencerTG.